In 2016, the Irish High Court handed down its second judgment in Somague v Transport Infrastructure Ireland (here) while, in the UK, a highly anticipated decision was handed down in Energy Solutions.

In Somague the contracting authority opened the door to a challenge, which it successfully defended, in circumstances where the working notes of a member of the tender evaluation team did not accord with the terms of the Request for Tender.

In Energy Solutions, the contracting authority lost a challenge in respect of its tender process in circumstances where the working and evaluation notes available from the evaluation team failed to comprehensively demonstrate a chain of decision making.

Based on the findings in these two judgments, we can distil current judicial guidance regarding the type of notes that should be maintained by the evaluation team. Your objective must be to end up with:

  • Structured, careful notes
  • That demonstrate a chain of decision making
  • That directly relates to the language in the tender.

This is harder than it sounds and your evaluation team members will need careful training to adhere to this standard. We recommend that you:

1. Elect a chairperson who will advise the team;

2. Ensure all team members sign a declaration that they have no conflicts of interest arising;

3. Require that individual notes taken in the first instance are:

  1. clear and succinct,
  2. sufficient to demonstrate analysis of the content of the tenders submitted,
  3. reflective of the terms of the questions and requirements in the Request for Tender documents, and
  4. available for disclosure in the event of a challenge.

4. Require that consensus notes (the evaluation team’s final notes) are:

  1. demonstrative of a complete chain of decision making (eg – where individuals alter their draft scores on the basis of debate within the group, the reasons for their alteration of their initial scores must be documented);
  2. inclusive of records of all relevant conversations;
  3. signed by all members of the evaluation team.